NIKUNJ BARROT, MUMBAI V. ITO 20(2)(3), MUMBAI

ITA 4887/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4464 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 07-09-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K DHONDIAL J
• Keywords: Condonation of delay
• Section: 144

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.4887/MUM/2015 ASSESSMENT YEAR: 2008-09 MR. NIKUNJ BAROT (PROP. ENIGMA), B-65, CH6, STANFORT PLAZA, VEERA INDL. ESTATE, ANDHERI(W), MUMBAI-400053 / VS. ITO-20(2)(3), MUMBAI / ASSESSEE / REVENUE P.A. NO. ALPPB6397P $ % & / ASSESSEE BY NONE $ % & / REVENUE BY SHRI A.K.DHONDIAL JCIT-DR / DATE OF HEARING 06/01/2016 & / DATE OF ORDER: 06/01/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 10/10/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO ITA NO.4887/MUM/2015 MR. NIKUNJ BAROT 2 DISALLOWANCE OF VARIOUS EXPENSES, ON ADHOC BASIS, A MOUNTING TO RS.2,21,186/- I.E. 10% OF TOTAL EXPENSES. 2. DURING HEARING OF THIS APPEAL, NOBODY APPEARED ON BEHALF OF THE ASSESSEE, IN SPITE OF ISSUANCE OF REG ISTERED AD NOTICE TO THE ASSESSEE. THE REGISTERED NOTICE SENT TO THE ASSESSEE WAS RETURNED BACK WITH THE REMARK LEFT, SENT AT THE ADDRESS MENTIONED IN RECORD (FORM NO.35 AND IMP UGNED ORDER). THUS, I HAVE NO OPTION BUT TO PROCEED EX-P ARTE, QUA THE ASSESSEE, AND TEND TO DISPOSE OF ON THE BASIS O F MATERIAL AVAILABLE ON RECORD. 2.1. IT IS ALSO NOTED THAT APPEAL IS BARRED BY LIM ITATION BY 637 DAYS. THE ASSESSEE HAS NOT FILED AN APPLICAT ION FOR CONDONATION OF DELAY, HOWEVER, THE ASSESSEE HAS FIL ED ONE AFFIDAVIT FOR CONDONATION OF DELAY IN FILING THE AP PEAL. BY TAKING A LENIENT VIEW AND THE CONTENTS OF THE AFFID AVIT, WHEREIN, IT HAS BEEN MENTIONED THAT THE MOTHER OF T HE ASSESSEE DIED DUE TO BREAST CANCER AND THE ASSESSEE BECOME DISTURBED WHICH CAUSE THE DELAY. THE LD. DR, SHRI, A.K.DHONDIAL OPPOSED THE CONDONATION OF DELAY BY CONTENDING THAT THE ASSESSEE WAS EXPECTED TO FILE T HE APPEAL IN TIME. 2.2. I HAVE CONSIDERED THE SUBMISSIONS OF LD. DR A ND PERUSED THE MATERIAL AVAILABLE ON RECORD. NO DOUBT FILING OF AN APPEAL IS A RIGHT GRANTED UNDER THE STATUTE TO T HE ASSESSEE ITA NO.4887/MUM/2015 MR. NIKUNJ BAROT 3 AND IS NOT AN AUTOMATIC PRIVILEGE, THEREFORE, THE A SSESSEE IS EXPECTED TO BE VIGILANT IN ADHERING TO THE MANNER A ND MODE IN WHICH THE APPEALS ARE TO BE FILED IN TERMS OF TH E RELEVANT PROVISIONS OF THE ACT. NEVERTHELESS, A LIBERAL APPR OACH HAS TO BE ADOPTED BY THE APPELLATE AUTHORITIES, WHERE DELA Y HAS OCCURRED FOR BONA FIDE REASONS ON THE PART OF THE A SSESSEE OR THE REVENUE IN FILING THE APPEALS. IN MATTERS CONC ERNING THE FILING OF APPEALS, IN EXERCISE OF THE STATUTORY RIG HT, A REFUSAL TO CONDONED THE DELAY CAN RESULT IN A MERITORIOUS MATT ER BEING THROWN OUT AT THE THRESHOLD, WHICH MAY LEAD TO MISC ARRIAGE OF JUSTICE. THE JUDICIARY IS RESPECTED NOT ON ACCOU NT OF ITS POWER TO LEGALIZE IN JUSTICE ON TECHNICAL GROUNDS B UT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 2.3. THE HONBLE APEX COURT IN A CELEBRATED DECISI ON IN COLLECTOR, LAND ACQUISITION VS MST. KATIJI & ORS. 1 67 ITR 471 OPINED THAT WHEN TECHNICAL CONSIDERATION AND SUBSTA NTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE COURTS A RE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PARTY, IN A DISPUTE, CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A N ON- DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAY, JUDIC IOUS AND LIBERAL APPROACH IS TO BE ADOPTED. IF SUFFICIENT C AUSE IS FOUND TO EXIST, WHICH IS BONA-FIDE ONE, AND NOT DUE TO NE GLIGENCE OF THE ASSESSEE, THE DELAY NEEDS TO CONDONED IN SUCH C ASES. THE EXPRESSION SUFFICIENT CAUSE IS ADEQUATELY ELASTIC TO ENABLE ITA NO.4887/MUM/2015 MR. NIKUNJ BAROT 4 THE COURTS TO APPLY LAW IN A MEANINGFUL MANNER, WHI CH SUB- SERVES THE END OF JUSTICE- THAT BEING THE LIFE PURP OSE OF THE EXISTENCE OF THE INSTITUTION OF THE COURTS. WHEN S UBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAI NST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. THE HONBLE APEX COURT IN VEDABHAI VS SA NTARAM 253 ITR 798 OBSERVED THAT INORDINATE DELAY CALLS OF CAUTIOUS APPROACH. THIS MEANS THAT THERE SHOULD BE NO MALAF IDE OR DILATORY TACTICS. SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCTION TO ADVANCE SUBSTANTIAL JUSTICE. THE H ONBLE APEX COURT IN 167 ITR 471 OBSERVED AS UNDER:- 3. THE LEGISLATURE HAS CONFERRED THE POWER TO COND ONE DELAY BY ENACTING SECTION 51 OF THE LIMITATION ACT OF 1963 I N ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PART IES BY DISPOSING OF MATTERS ON DE MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY EL ASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS C OMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFI ABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT T HE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHERS COURTS IN THE HIERARCHY. 2.4. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF VEDABAI ALIA VAIJAYANATABAI BABURAO PATIL V S. SHANTARAM BABURAO PATIL 253 ITR 798 HELD THAT THE C OURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE ITA NO.4887/MUM/2015 MR. NIKUNJ BAROT 5 KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBSTANTIAL JUST ICE IS OF PRIME IMPORTANCE. THE COURT HELD THAT THE EXPRESSIO N SUFFICIENT CAUSE SHOULD RECEIVE LIBERAL CONSTRUCT ION. HAVING MADE THE AFORESAID OBSERVATION, I MAY NOW CONSIDER THE PLEA OF THE ASSESSEE. THE CIRCUMSTANC ES NARRATED BY THE ASSESSEE IN HIS AFFIDAVIT, WHEREIN, HE HAS STATED THAT HIS MOTHER DIED OF CANCER AND HE BECAME SO SAD WHICH CAUSED THE DELAY, THEREFORE, UNDER THE FACTS AND THE CIRCUMSTANCES NARRATED HEREINABOVE, THE DELAY IS CO NDONED. 3. SO FAR AS, THE MERIT OF THE APPEAL IS CONCERNED , I FIND THAT THE ASSESSMENT ORDER WAS ALSO FRAMED U/S 144 OF THE INCOME TAX ACT AS THE ASSESSEE DID NOT APPEAR B EFORE THE ASSESSING OFFICER IN SPITE OF SERVICE OF VARIOUS NO TICES AS THE ASSESSEE DID NOT TURN UP TO FILE THE DETAILS ASKED BY THE ASSESSING OFFICER, EVEN ON GRANTING FINAL OPPORTUNI TY FOR 26/11/2010, THE ASSESSEE MERELY FILED CERTAIN DOCUM ENTS WHICH WERE NOT SUFFICIENT. ULTIMATELY, EX-PARTE AS SESSMENT WAS FRAMED BY THE ASSESSING OFFICER. THE ASSESSEE DID NOT FURNISH THE DETAILS OF RECEIPT OF COMMISSION/BROKER AGE, CLAIM OF EXPENSES IN HIS PROFIT AND LOSS ACCOUNT, NECESSA RY DETAILS WITH RESPECT TO SUNDRY CREDITORS ETC. EVEN BEFORE THIS TRIBUNAL, THE REGISTERED AD LETTER, SENT BY THE REG ISTRY WAS RETURN UN-SERVED. IT IS NOTED THAT IN THE ABSENCE OF NECESSARY DETAILS AD-HOC DISALLOWANCE WAS MADE BY THE ASSESSI NG ITA NO.4887/MUM/2015 MR. NIKUNJ BAROT 6 OFFICER TO THE TUNE OF BROADLY 10% OF THE TOTAL EXPENSES/CLAIM. IT IS NOTED THAT WHEREVER, RELIEF C OULD HAVE BEEN GIVEN, THE LD. COMMISSIONER OF INCOME TAX (APP EALS) HAS ALREADY GRANTED RELIEF SUCH AS DIFFERENCE IN TOTAL RECEIPT AS PER TDS CERTIFICATE AND PROFIT & LOSS ACCOUNT. UNDER T HE FACTS, NARRATED HEREINABOVE, TO CUT SHORT THE MATTER AND T O AVOID LITIGATION, BY KEEPING IN VIEW, THE PRINCIPLE OF JU STICE, THE AD- HOC DISALLOWANCE IS RESTRICTED TO 8% AGAINST 10% MA DE BY THE LD. ASSESSING OFFICER, THUS, THE APPEAL OF THE ASSE SSEE IS PARTLY ALLOWED. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 06/01/2016 SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 06/01/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI